The Constitution in Conflict - Tapa dura

Good political theory, good history, and a good read. A well-written, thoughtful work, sure to be controversial, which adroitly challenges assumptions previously held by most scholars and laypeople about the courts and judicial supremacy. Dr. Burt provides an excellent study of the evolving functions of the Supreme Court. His work carries the reader from the inceptions of the Court through "Roe", "Brown III" and the surfeit of cases concerning the death penalty issue and abortion. His research illustrates a wide knowledge of source materials dealing with the evolution of the Court. Documentation was gathered from various disciplines to support his contentions concerning the conflicts within the Court. Most illuminating is the colection of annotated footnotes that offer supportive information in a way that does not interrupt the flow of the narrative...It is an excellent tome worthy of several readings.--Arthur K. Steinberg "Presidential Studies Quarterly "

"If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made...the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal", Abraham Lincoln. Lincoln was not alone in believing that the Constitution could be interpreted by any of the three branches of the government. Today, however, the Supreme Court's role as the ultimate arbiter of constitutional matters is widely accepted. But as Robert Burt aims to show in his book, this was not always the case, nor should it be. In a reconstruction of constitutional history, Burt traces the controversy over judicial supremacy back to the founding fathers, with Madison and Hamilton as the principal antagonists. The conflicting views these founders espoused - equal interpretive powers among the federal branches on one hand and judicial supremacy on the other - remain plausible readings of "original intent" and so continue to present us with a choice. Drawing extensively on Lincoln's conception of political equality, Burt argues that judicial supremacy and majority rule are both inconsistent with the egalitarian democratic ideal. The proper tasks of the judiciary, he contends - as epitomized in Brown vs Board of Education - is to actively protect minorities against "enslaving" legislative defeats while, at the same time, to refrain from awarding conclusive "victory" to these minorities against their adversaries. From this premise, Burt goes on to examine key decisions such as Roe vs Wade, US vs Nixon, and the death penalty cases, all of which demonstrate how the Court has fallen away from egalitarian jurisprudence and returned to an essentially authoritarian conception of its role. With an eye to the urgent issues at stake in these cases, Burt identifies the alternative results that an egalitarian conception of judicial authority would dictate. The first fully articulated presentation of the Constitution as a communally interpreted document in which the Supreme Court plays an important, but not predominant, role, "The Constitution in Conflict" has dramatic implications for both the theory and the practice of constitutional law.